Arkansas Board of Health's rules now say abortion causes 'death'; wording still divides panel

State Board of Health Chairman Dr. Terry Yamauchi (left) and Director Dr. Nate Smith (center) vote Thursday in Little Rock on the adoption of rules required by new state laws concerning abortion.
State Board of Health Chairman Dr. Terry Yamauchi (left) and Director Dr. Nate Smith (center) vote Thursday in Little Rock on the adoption of rules required by new state laws concerning abortion.

Despite some members' continuing objections to wording describing an abortion as an unborn child's "death," the state Board of Health on Thursday approved proposed regulations implementing abortion-restricting laws passed by the state Legislature this year and in 2015.

"We are requiring that women with unwanted pregnancies be told that a decision to proceed with a medication or a procedure that is legal in all 50 states is tantamount to killing her baby," board member Clark Fincher, a Searcy physician, said before the divided vote.

The board approved an earlier version of the regulations last year, but it was never submitted to the Legislative Council for final approval, said Robert Brech, the state Department of Health's general counsel.

The new version includes last year's changes as well as provisions stemming from laws passed during this year's legislative session.

A change included in at least three of the 2015 laws would define abortion as a procedure causing the "death of the unborn child."

Last year the board had attempted to replace the words "death of the unborn child" with "termination of the pregnancy." Gov. Asa Hutchinson rejected that change and sent the regulations back to the board, which restored the "death of the unborn child" wording in April 2016.

By the time the board was ready to submit the rules to the Legislative Council for approval, the 2017 session was close enough that the Health Department decided to halt the rule-making process and start over after the session, Brech said.

"We knew that there would be more changes," he said.

Fincher said he voted in favor of the "death of the unborn child" wording last year because he thought passage of the rules was "inevitable." Since then, he said, he's decided that board members should vote according to their conscience.

"It is not our job to be politically correct," Fincher said. "It is our duty to vote our honest opinion on each issue, so that our actions make the lives of Arkansans better."

Board member Perry Amerine, a Paris optometrist, had another objection. Noting that the regulations would define a "born-alive infant" as "the complete expulsion or extraction" of an infant showing signs of life, he said he was concerned that doctors would be allowed to perform abortions when a child has only partially emerged from the womb.

Becky Bennett, chief of the Health Department's health facilities services section, said that language came from Act 392 of 2017, which requires doctors to "take all medically appropriate and reasonable steps" to preserve the life of an infant showing signs of life, regardless of the state of gestational development.

Brech said other laws prevent partial-birth abortions. Act 371 of 2013, for instance, bans most abortions in the state after the 20th week of pregnancy.

The proposed regulations would also implement five other laws passed during this year's session and six passed in 2015.

Four of the 2017 laws have been halted by a federal judge's order while challenge against them is pending. Those are Act 45, which bans a common second-trimester procedure known as dilation and evacuation; Act 1018, which requires doctors to notify local law enforcement agencies of abortions performed on girls age 16 or younger; Act 733, which requires doctors to seek a woman's prior medical records if she knows the sex of her fetus and is seeking an abortion; and Act 603, which governs the disposal of fetal remains.

Another 2017 law, Act 383, is also the subject of a federal court challenge, but the plaintiffs in that case did not ask for a temporary order to block it from taking effect while the case is pending. That law requires immediate penalties for violations found during abortion clinic inspections.

The corresponding regulations can be stricken before the rules receive final approval if the courts ultimately overturn any of the laws, Brech said.

"If we wait until all the dust is settled, we may never have rules and regulations that actually reflect our current statutes," he said.

The 2015 laws that would be implemented by the regulations are Acts 1014 and 139, which outlaw so-called webcam abortions by requiring that a physician be in the room during a chemical abortion; Act 535, which governs the disposal of fetal tissue; Act 577, which add requirements for doctors who provide abortion pills; Act 934, which added a requirement that an adult accompanying a minor for abortion services must show proof of identity that the adult is a parent or a guardian; and Act 1086, which increased the waiting period between a doctor's consultation and an abortion from 24 hours to 48 hours.

By a show of hands, the board approved the regulations in what Brech said was a 13-5 vote.

After the regulations are published, the department will accept comments for 30 days and hold a public hearing before submitting the regulations to the Legislative Council, Brech said. The regulations will then come back to the board for final approval, he said.

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Members of the Board of Health vote Thursday on abortion regulations required by new state laws passed this year and in 2015. The board met at the Little Rock Marriott hotel.

A Section on 10/27/2017

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